FILED
June 22, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re A.M.
No. 21-0108 (Ohio County 19-CJA-115)
MEMORANDUM DECISION
Petitioner Mother L.W., by counsel Amy Pigg Shafer, appeals the Circuit Court of Ohio
County’s January 8, 2021, order terminating her parental rights to A.M. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Joseph J.
Moses, filed a response on behalf of the child in support of the circuit court’s order and a
supplemental appendix. The father H.M., by counsel Richard W. Hollandsworth, also filed a
response in support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues
that the circuit court erred in denying her an extension of her post-adjudicatory improvement
period, denying her motion for a post-dispositional improvement period, and terminating her
parental rights without imposing a less-restrictive alternative disposition.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In August of 2019, the DHHR filed a child abuse and neglect petition alleging that
petitioner crashed her vehicle head-on into a semi-truck while under the influence of illicit drugs
resulting in both she and then-four-year-old A.M. sustaining serious injuries. The DHHR further
alleged that petitioner was life-flighted to the hospital and, upon admission, tested positive for
amphetamine, buprenorphine, and benzodiazepine. Medical staff also found a small bag of
methamphetamine in petitioner’s possession. Additionally, the police report for the collision stated
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
1
that officers found a pipe used for smoking methamphetamine in the center console of petitioner’s
vehicle. Thereafter, petitioner waived her preliminary hearing.
The circuit court held an adjudicatory hearing in October of 2019, wherein petitioner
stipulated to the allegations in the petition. The circuit court accepted petitioner’s stipulation and
adjudicated her as an abusing parent. The circuit court also granted petitioner a post-adjudicatory
improvement period, which began in January of 2020. The terms of petitioner’s post-adjudicatory
improvement period required her to maintain sobriety from drugs and alcohol, submit to random
drug screens, participate in supervised visitations, attend narcotics anonymous (“NA”) and
alcoholics anonymous meetings once a week, participate in parenting and adult life skills classes,
undergo a psychological evaluation, attend individualized counseling, complete the program at an
inpatient drug treatment facility and complete further substance abuse treatment as recommended
by such a facility upon her discharge. Petitioner was also required to address her mental health
issues, sign a release for her medical records during the course of her various treatments, cease all
contact with inappropriate people, and be completely honest and open in all communications with
the DHHR, the multidisciplinary team (“MDT”), and the court. Initially, petitioner refused to
attend inpatient drug treatment and opted to attend intensive outpatient drug treatment. However,
petitioner continued to test positive for methamphetamine and agreed to attend an inpatient drug
treatment program. By February of 2020, petitioner had completed thirty days at an inpatient drug
rehabilitation program but relapsed by testing positive for methamphetamine upon discharge. In
response the MDT agreed that petitioner must complete a ninety-day inpatient drug rehabilitation
program, which she entered in late February of 2020.
In March of 2020, the circuit court held a hearing, during which the DHHR discussed
terminating petitioner’s improvement period and presented evidence that petitioner violated the
rules at her first inpatient drug rehabilitation program. The circuit court deferred ruling on the
motion in light of petitioner’s admission into a second longer drug rehabilitation program in
February of 2020. At a status hearing in June of 2020, the court noted that petitioner’s improvement
period was set to expire on July 17, 2020, but would entertain a motion to extend the improvement
period in light of petitioner’s completion of a ninety-day drug rehabilitation program in May of
2020 and participation in intensive outpatient drug treatment and counseling. However, petitioner
filed no motion for an extension prior to the July 17, 2020, expiration date. By August of 2020,
the DHHR presented evidence at a status hearing that despite petitioner’s enrollment and
completion of various drug treatment programs, she continued to test positive for
methamphetamine and alcohol. Accordingly, the circuit court set the matter for disposition.
Petitioner filed a motion for an extension of her post-adjudicatory improvement period or
in the alternative a “dispositional improvement plan” in late September of 2020. Within the
motion, petitioner conceded that her post-adjudicatory improvement period had previously expired
yet requested the court to extend the improvement period. Further, in the alternative, petitioner
requested a “Disposition 5 resolution” arguing that her parental rights should not be terminated
because the child was reunified with the father.
In October of 2020, the guardian filed a report indicating that petitioner had not been
truthful with the MDT in January of 2020 about her relapse and later withheld information about
her prescription for Subutex from a cash-based clinic in Pennsylvania. Most importantly, the
2
guardian stated that petitioner attempted to cheat a drug screen in February by bringing someone
else’s urine as a testing sample. After petitioner was caught, she tested positive for
methamphetamine. Further, the guardian reported that around May of 2020, petitioner went to the
emergency room for stomach pain and obtained morphine without telling the emergency room
staff that she was addicted to opioids. The guardian recommended the termination of petitioner’s
parental rights arguing that the “history of this case proves that no amount of treatment will enable
[petitioner] to have her child safely returned to her.”
In October and November of 2020, the circuit court held dispositional hearings. At the
October hearing, petitioner proffered that she filed a motion for an extension of a post-adjudicatory
improvement period or in the alternative a motion for a “dispositional improvement plan.” 2 The
circuit court determined that the motion for an extension was untimely and denied the same.
Regarding petitioner’s motion for a “dispositional improvement plan,” the circuit court treated the
argument as one for a post-dispositional improvement period and stated that it would consider and
hear evidence upon the motion.
The father testified that petitioner had been in multiple vehicle accidents besides the one
that initiated the DHHR’s investigation in the current case. In August of 2018, petitioner crashed
her vehicle, resulting in A.M. being injured and the vehicle getting totaled. The father stated that
petitioner appeared to be under the influence of drugs at the hospital after that crash, but no blood
tests were performed. The father stated that the child was returned to his physical custody in March
of 2020, and that she panicked whenever she saw a large or loud truck. He said that he desired for
petitioner’s parental rights be terminated for fear for the child’s safety if placed in petitioner’s care.
Next, the DHHR worker testified that petitioner opted to attend intensive outpatient drug
treatment in October of 2019 but continued to fail every drug screen resulting in the temporary
suspension of petitioner’s supervised visits. After the first intensive outpatient program was
unsuccessful, petitioner completed a drug detoxification program, and then entered a thirty-day
inpatient drug rehabilitation program in December of 2019. However, upon discharge in January
of 2020, petitioner tested positive for marijuana, methamphetamine, and nonprescribed
buprenorphine. Petitioner then entered a ninety-day inpatient drug rehabilitation program in
February of 2020. After only four days, petitioner was removed from the program for rules
violations regarding cell phones and pill counts. Petitioner entered drug detoxification again and
then entered a different long-term inpatient drug treatment facility by the end of February of 2020.
Thereafter, petitioner completed that program and was discharged in May of 2020 with follow up
care with intensive outpatient drug treatment that included individualized therapy and counseling.
However, from June to August of 2020, petitioner relapsed and was abusing methamphetamine
and alcohol, and was suspected of abusing buprenorphine. The worker stated that as a result of
petitioner’s numerous relapses, supervised visitations had been reinstated and suspended four
times, to the child’s detriment. Shortly after visits were reinstated in August of 2020, petitioner
2
As previously noted, the motion requested an extension of petitioner’s post-adjudicatory
improvement period and, in the alternative, requested an alternative disposition to the termination
of petitioner’s parental rights. The motion made no mention of requesting a post-dispositional
improvement period.
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stopped consistently submitting to drug screens and continued to test positive for
methamphetamine as late as September of 2020.
Regarding petitioner’s use of buprenorphine, the worker stated that petitioner withheld
information from the MDT that she obtained a prescription for Subutex, a form of buprenorphine,
in June of 2020 from a cash-based clinic in Pennsylvania. She explained that she had concerns that
petitioner did not instead obtain Suboxone, which is different as it contains both buprenorphine
and naloxone, an opioid “blocker.” She opined that petitioner should have sought a prescription
for Suboxone from her intensive outpatient treatment center but did not do so. Also, petitioner did
not test positive for the Subutex until July of 2020, and sporadically tested positive for it until
September of 2020, indicating that petitioner was not using the medication as directed. Further,
the worker testified that petitioner previously admitted to abusing Subutex by smashing it and
snorting it and that petitioner stated that Subutex was her drug of choice after methamphetamine.
Finally, the worker stated that petitioner obtained the Subutex prescription without consulting the
DHHR worker, her legal counsel, or her drug counselors. On cross-examination, the worker stated
that petitioner had stable housing and employment and had completed her parenting and adult life
skills classes.
At the November of 2020 hearing, petitioner’s clinical mental health therapist at her
intensive outpatient program testified that petitioner attended most weekly therapy sessions from
mid-July to October of 2020. However, the therapist stated that petitioner failed to disclose
obtaining a Subutex prescription in June of 2020, and that in his opinion buprenorphine, such as
Subutex or Suboxone, does not help address methamphetamine addiction. Also, after initially lying
to him in early September of 2020 during a session, petitioner admitted to abusing
methamphetamine that she found while cleaning her house. The therapist also stated that petitioner
claimed that in August of 2020, strangers held her at knife point and forced her to snort cocaine in
an effort to prove that she was not a “narc.”
Next, petitioner’s peer recovery specialist testified that he’s known petitioner for two years
and that she completed their intensive outpatient program a few days prior on November 13, 2020.
He also explained that petitioner had been receiving prescribed Subutex (buprenorphine only) from
a clinic in Pennsylvania but now receives Suboxone (buprenorphine and naloxone), which has an
opioid blocker, through the medication-assisted treatment program at his intensive outpatient drug
treatment facility. The specialist stated that petitioner had been compliant with the medication-
assisted treatment program over the previous month but conceded that buprenorphine should not
be clinically used to treat methamphetamine addiction.
Finally, petitioner testified that she had stable housing and employment, and she continued
therapy and counseling within her medication-assisted treatment program. She stated that despite
twenty years of substance abuse addiction, she did not enroll into an inpatient drug rehabilitation
program until she was directed to do so in the instant proceedings. She admitted to obtaining the
Subutex prescription from a clinic in Pennsylvania, despite her prior abuse of that substance by
snorting it, and further admitted to not telling her counselors or the DHHR worker about the
prescription. She also conceded that she did not take the Subutex as prescribed, resulting in the
inconsistent positive drug screens between June and September of 2020. Petitioner stated that she
tested positive for cocaine and opiates in late August of 2020 because she was forced to ingest
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them by strangers but admitted that she did not report the incident to the police. Upon cross-
examination by the guardian, petitioner conceded that she did not successfully complete all of the
terms and conditions of her post-adjudicatory improvement period.
After hearing the evidence, the circuit court noted that petitioner had been in several vehicle
accidents due to her substance abuse, resulting in injuries to the child. The court also noted that
petitioner lied throughout the proceedings regarding her relapses, drug screens, and obtaining a
prescription for Subutex in Pennsylvania. The circuit court concluded that petitioner had been
sober for two of the fourteen months that the case had been pending and that after twenty years of
drug addiction and multiple interventions of drug treatment, petitioner continued to abuse alcohol,
prescribed medications, and illicit drugs. The circuit court found that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future and that it was in the best interest of the child to terminate petitioner’s parental rights. The
circuit court’s January 8, 2021, dispositional order reflected this termination. 3 It is from this
dispositional order that petitioner appeals.
The Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether such
child is abused or neglected. These findings shall not be set aside by a reviewing
court unless clearly erroneous. A finding is clearly erroneous when, although there
is evidence to support the finding, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed. However,
a reviewing court may not overturn a finding simply because it would have decided
the case differently, and it must affirm a finding if the circuit court’s account of the
evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner first argues that the circuit court erred by failing to extend her post-
adjudicatory improvement period. West Virginia Code § 49-4-610(6) provides that
[a] court may extend any improvement period granted pursuant to subdivision (2)
or (3) of this section for a period not to exceed three months when the court finds
that the respondent has substantially complied with the terms of the improvement
period; that the continuation of the improvement period will not substantially
impair the ability of the department to permanently place the child; and that the
extension is otherwise consistent with the best interest of the child.
3
The father successfully completed an improvement period, and the petition was dismissed
against him. The child was reunified with the father.
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(Emphasis added). According to the record, petitioner’s post-adjudicatory improvement period
expired on July 17, 2020, and petitioner waited to file her motion for an extension on September
29, 2020. Therefore, the improvement period could not continue after its expiration. Furthermore,
the circuit court found that petitioner obtained a de facto extension of her post-adjudicatory
improvement period by receiving services after its expiration. As petitioner clearly waited to file
the motion for an extension more than two months after the expiration of her post-adjudicatory
improvement period, we find that petitioner is entitled to no relief in this regard.
Next, petitioner alleges that the circuit court erred in denying her motion for a post-
dispositional improvement period because she experienced a substantial change in circumstances
since the granting of her post-adjudicatory improvement period and, she argues, she was likely to
fully participate in a post-dispositional improvement period. According to petitioner, she complied
with the terms and conditions of her post-adjudicatory improvement period, including maintaining
housing and employment, actively participating in therapy, completing adult life skills and
parentings sessions, completing various drug treatment programs, participating in all supervised
visitations, and attending all hearings and MDT meetings. By the dispositional hearing, petitioner
had obtained a new sponsor at NA, had taken on additional individualized counseling and group
therapy, and was compliant with her medication-assisted drug treatment through an intensive
outpatient program. In light of this, she argues that the circuit court should have granted her a post-
dispositional improvement period. Upon our review of the record, we find petitioner is entitled to
no relief.
West Virginia Code § 49-4-610(3)(B) provides that a circuit court may grant a parent a
post-dispositional improvement period after the expiration of a previous improvement period when
the parent “demonstrates, by clear and convincing evidence, that [she] is likely to fully participate
in the improvement period.” Further, because petitioner was granted a prior improvement period,
she was required to show that she “experienced a substantial change in circumstances” and that
due to the change in circumstances, she was likely to fully participate in a second improvement
period. It is well established that “West Virginia law allows the circuit court discretion in deciding
whether to grant a parent an improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d
338, 345 (2015). Finally, the circuit court has discretion to deny an improvement period when no
improvement is likely. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).
It is clear from the record that petitioner was not likely to fully participate in a post-
dispositional improvement period based on her performance in her post-adjudicatory improvement
period. Indeed, petitioner testified that she did not successfully complete all of the terms and
conditions of her post-adjudicatory improvement period. The record shows that petitioner
underwent intensive outpatient drug treatment four times, attended inpatient drug treatment three
times, completed drug detoxification at least two times, and remained in therapy and counseling
sessions sporadically throughout the proceedings. Despite these extensive efforts to address her
drug addiction, petitioner continued to relapse and abuse methamphetamine, buprenorphine,
cocaine, alcohol, and marijuana at various points throughout the case. Petitioner reportedly abused
methamphetamine as late as September of 2020. Also, according to the guardian, petitioner
attempted to cheat a drug screen by using someone else’s urine sample, lied about various relapses
to the MDT, obtained morphine from an emergency room without divulging her addiction, lied
about obtaining the Subutex prescription for four months to the MDT and her drug counselors, and
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incredulously claimed that strangers held her at knife point to force her to snort cocaine in late
August of 2020. Although petitioner completed several terms of her improvement period, she
failed to follow the most important terms—honesty with the MDT and drug counselors and
maintaining sobriety. “In making the final disposition in a child abuse and neglect proceeding, the
level of a parent’s compliance with the terms and conditions of an improvement period is just one
factor to be considered. The controlling standard that governs any dispositional decision remains
the best interests of the child.” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014). When
considering petitioner’s lack of candor with the court and the MDT throughout the proceedings
and petitioner’s failure to maintain sobriety despite extensive drug treatments, we find no error in
the circuit court’s denial of petitioner’s motion of a post-dispositional improvement period.
This evidence also supports the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(c)(6) provides that a circuit court may terminate a parent’s parental
rights upon finding that “there is no reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected in the near future” and that termination of parental rights is necessary
for the welfare of the child. Pursuant to West Virginia Code § 49-4-604(d)(3), a circuit court may
determine that there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected when
[t]he abusing parent or parents have not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts of social, medical, mental
health, or other rehabilitative agencies designed to reduce or prevent the abuse or
neglect of the child, as evidenced by the continuation or insubstantial diminution
of conditions which threatened the health, welfare, or life of the child.
Here, petitioner failed to respond to a reasonable family case plan. She failed to maintain
sobriety as she abused methamphetamine as late as September of 2020—a few weeks before the
October of 2020 dispositional hearing. Further, petitioner failed to avoid fraternizing with
inappropriate individuals who abuse drugs as evidenced by her explanation for her cocaine use in
late August of 2020. Petitioner admitted to obtaining a Subutex prescription from a cash-based
clinic in Pennsylvania and hiding that fact from the MDT and drug counselors. She further
admitted to not taking that medication as prescribed. Although petitioner exercised supervised
visitations, her visits were suspended and reinstated four separate time due to her relapses, which
was ultimately detrimental to the child. The circuit court noted, and the record supported its
finding, that petitioner maintained sobriety for only two of the fourteen months while the case was
pending and that petitioner was dishonest throughout the proceedings. Thus, the circuit court did
not err in concluding that there was no reasonable likelihood that petitioner could correct the
conditions of neglect or abuse in the near future.
Insomuch as petitioner argues that she should have been given additional time to
demonstrate that she could correct the conditions of abuse and neglect, we have previously held
that “[c]ourts are not required to exhaust every speculative possibility of parental improvement . .
. where it appears that the welfare of the child will be seriously threatened.” Cecil T., 228 W. Va.
at 91, 717 S.E.2d at 875, syl. pt. 4, in part (citation omitted). Additionally, the record shows that
the child would have been at risk if returned to petitioner’s care, given her ongoing substance abuse
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issues and history of serious vehicle accidents with the child. As such, it is clear that the welfare
of the child required termination of petitioner’s parental rights.
Finally, regarding petitioner’s argument that her parental rights to A.M. should have
remained intact since the child was reunified with the father, we have previously held that “simply
because one parent has been found to be a fit and proper caretaker for [the] child does not
automatically entitle the child’s other parent to retain his/her parental rights if his/her conduct has
endangered the child and such conditions of abuse and/or neglect are not expected to improve.” In
re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000). Here, there was substantial evidence
that petitioner was unlikely to improve and correct the conditions of abuse and neglect.
Furthermore, petitioner was not entitled to a less-restrictive alternative disposition. We have held
that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(d)] that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As such, we find no error in the
termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 8, 2021, order is hereby affirmed.
Affirmed.
ISSUED: June 22, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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